2006-541, STATE OF NH v. DANIEL SODOYER

Kelly A. Ayotte

No. 2006-541 Rockingham

may be other drugs in the apartment, the officers sought to search it. LeBlanc them and he admitted that they were for ingesting cocaine. Suspecting there

cut plastic straws in the living room, one of the officers asked LeBlanc about

THE SUPREME COURT OF NEW HAMPSHIRE in the apartment were the defendant, Jeffrey LeBlanc and a woman. Observing officers responded to a report of an assault at an apartment in Derry. Present The following appears in the record: On November 30, 2004, police

, chief appellate defender, of Concord, on the

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 remand. Superior Court (Nadeau, J.) denying his motion to suppress. We reverse and DALIANIS, J. The defendant, Daniel Sodoyer, appeals an order of the

brief and orally, for the defendant. Christopher M. Johnson

and Mr. Fuller orally), for the State. attorney general, and Nicholas Cort, assistant attorney general, on the brief, to press. Errors may be reported by E-mail at the following address: , attorney general (Stephen D. Fuller, senior assistant

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as order on a motion to suppress is de p. 2 the police to obtain either violates his rights. Our review of the trial court’s his consent or, alternatively, a warrant to search the room, and the failure of

reasonable expectation of privacy in that bedroom sufficient to have required

Article 19 of the New Hampshire Constitution. He also argues that he had a

rights under the Fourth Amendment to the Federal Constitution and Part I, The defendant argues that the search of the second bedroom violated his

suppress was denied. This appeal followed.

inspected.” United States v. Matlock

arrested the defendant for possession of marijuana. The defendant’s motion to As a result of finding the drugs and the identifying possessions, the officers items bearing the defendant’s name, including court documents and a wallet.

over or other sufficient relationship to the premises or effects sought to be

over the second bedroom to consent to its search. See

who did not object. During the search, marijuana was discovered as well as

against a defendant when conferred by a third party with “common authority lacked actual or apparent authority to consent. Consent to search is valid was ineffective to permit a search of the second bedroom because Templeton 2

items in the second bedroom, he did not have the requisite actual authority

A second bedroom was also searched in the presence of the defendant,

search the bedroom he was occupying.

The defendant specifically argues that the consent given by Templeton

apartment, “hadn’t been living there for some time” and owned none of the search. Id Wong, 138 N.H. 56, 61 (1993). Because Templeton no longer lived in the

scene and gave consent to search the premises. LeBlanc also gave consent to

for guidance only. Id. at 232-33. Constitution, State v. Ball, 124 N.H. 226, 231 (1983), and cite federal opinions

. We first address the defendant’s claim under the State

omitted). One such exception exists where the defendant has consented to the that the search was valid pursuant to one of these exceptions.” Id. (quotation (quotation omitted). “Absent a warrant, the burden is on the State to prove recognized exception.” State v. Szczerbiak, 148 N.H. 352, 354 (2002) per se unreasonable, unless they conform to the narrow confines of a judicially in the apartment. After being contacted by the police, Templeton arrived at the “Under the New Hampshire Constitution, all warrantless searches are occupancy were a living room chair and couch. The defendant denied residing for some time.” According to LeBlanc, all that remained from Templeton’s N.H. 673, 676 (2005). determined at the trial court level in the first instance. State v. Gubitosi, 152

actual leaseholder, but he no longer lived there and “hadn’t been living there admitted to living in the apartment and stated that John Templeton was the to search.” United States v. Vega

p. 3 Indeed, a misleading response to an officer’s question is a far cry from consent

expectation of privacy in a residence merely by denying an interest therein. admissions in response to police questioning. One does not lose the legitimate do not “evaporate[] simply because [the defendant] fail[s] to make incriminating

The Fifth Circuit has held that the rights of a defendant against illegal search

automatically leads to a waiver of privacy rights in the place being searched. There is a split of authority as to whether denying a possessory interest

apartment after first denying he lived there.

remaining silent during the search regarding his resident status in the

warrant. The State argues that the defendant waived his right to consent by consent was required in order to search the second bedroom without a With Templeton’s consent to search the bedroom invalid, the defendant’s

bedroom. that Templeton had apparent authority to consent to a search of the second individuals other than LeBlanc. Thus, the police were mistaken to conclude

permission to occupy the apartment, it had served as “a crash pad” for

officers were further aware that, though LeBlanc alone had Templeton’s furniture in the living room, a fact of which the officers were aware. The name. Templeton had moved all of his belongings out, except for two pieces of

see United States v. Sweeting, 933 F.2d 962 (11th Cir. 1991); State v. Ross, 49 (8th Cir. 1984); Commonwealth v. Sandler, 335 N.E.2d 903 (Mass. 1975). But Brown, 64 F.3d 1083 (7th Cir. 1995); United States v. Morales, 737 F.2d 761 denied, 531 U.S. 1155 (2001) (quotation omitted). Accord United States v. was only nominally responsible for the premises because the lease still bore his, 221 F.3d 789, 797 (5th Cir. 2000), cert.

State v. Sawyer

consent has authority to do so. Id

Sawyer caution in the belief that the consenting party had authority over the premises.

bedroom would rest with someone who was no longer in residence and who

believe that a third party consenting to the search has the authority to do so. apparent authority validates a search if the police reasonably, but mistakenly, then the officer must make further inquiry to ensure that the person giving apparent authority, even if there is no actual authority. The doctrine of

available to the officer at the moment would warrant a person of reasonable

It was not objectively reasonable that authority over an occupied

reasonable person to doubt whether the third party had the requisite authority, The State argues that third-party consent may be given if there is , 147 N.H. at 194. If the surrounding circumstances would cause a

belief was objectively reasonable, a court must examine whether the facts apparent authority is an objective one: to determine whether a police officer’s Illinois v. Rodriguez, 497 U.S. 177, 186 (1990). The standard for assessing

, 147 N.H. 191, 194 (2001), cert. denied, 537 U.S. 822 (2002); p. 4 LaFave, Search and Seizure: A Treatise on the Fourth Amendment

failure to make incriminating admissions in response to police inquiries.” 6 W.

Reversed and remanded

not the same as disavowing any hardly be said that Fourth Amendment rights evaporate merely because of a illegal search. The defendant’s denial that he did not live in the apartment is

make, and a choice between constitutional rights is one of them.” State v. . . . . There are some choices which the State cannot require a defendant to constitutional right in order to gain the benefit of another is simply intolerable

reflects, he truthfully answered the only question he was asked. “[I]t can possessory interest in the residence has on a defendant’s rights against an search cannot be equated to a waiver of his rights. As far as the record The defendant’s initial denial of residence and then silence during the

himself of another constitutional right. “To require a person to surrender one BRODERICK, C.J., and DUGGAN, GALWAY and HICKS, JJ., concurred.

required to search the second bedroom; thus, the search was illegal. Without consent from either Templeton or the defendant, a warrant was

Hearns, 151 N.H. 226, 238 (2004) (quotations omitted). However, we need not reach the question of what effect the denial of a

the search and seizure” (quotation omitted)).

have an expectation of privacy. the second bedroom. If the defendant was a temporary house guest, he might defendant surrender information that could incriminate him in order to avail 140 (4th ed. 2004). Our constitutional system does not demand that a

(1990). possessions searched or in the articles seized he cannot question the legality of Minnesota v. Olson, 495 U.S. 91, 96-97 S.W.3d 833, 841 (Tenn. 2001) (“when one disclaims interest in the premises or See

question or volunteer any statement about what kind of connection he had to denied living in the apartment; he was not asked, nor did he answer any other